from the take-a-stand dept

Yesterday, Karl covered Hillary Clinton's newly released platform on technology & innovation as it related to broadband policy and encryption. Today I wanted to look through what it said on another set of key issues to folks around Techdirt: copyright and patent policy. And, as with Karl's post yesterday, there appear to be some things that sound good, but are so vague and devoid of actual nuance as to be laughable. I get it: this is the political platform of someone running for President, and thus it's going to be worded in a vague and noncommital way on these issues, because these aren't issues that lead people to decide whether or not to vote for someone as President.

On the good-sounding side, there are promises about dealing with the orphan works problem and the patent troll problem. But they're weighted down with language that is quite vague and could mean almost anything, including lots of bad policy proposals.

Effective Copyright Policy: The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system. It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.

Now, just the fact that a Presidential campaign mentions that there's a problem with copyright law blocking access to content is somewhat revolutionary, so kudos to whoever got that into the plan. But the weird "while protecting the innovation incentives in the system" trailing line could mean anything and is designed to be just vague enough for anyone to read anything into it. What are the "innovation incentives in the system" right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it's long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment.

The fact that the orphan works problem gets called out is exciting, but even then the solution isn't clear. The only real solution to the orphan works problem is to go back to a system of formalities, requiring registration to get a copyright. Then place stuff that isn't registered and where there's no way to contact the copyright holder in the public domain. Boom. Problem solved. But it seems unlikely that that's where Clinton is going with this.

In the more detailed fact sheet, the expansion of these ideas is basically just the same thing as the condensed version but with way more words:

Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad.

Open licensing is good. Removing barriers to effective licensing is also good. But there's no plan here. People have talked about these things for ages and never gotten anywhere because entrenched interests don't want this kind of thing to happen at all.

Also, there's a weird call out to SOPA -- but not in the copyright section. Rather, she mentions it in the net neutrality section because whatever, no one cares:

She also maintains her opposition to policies that unnecessarily restrict the free flow of data online –such as the high profile fight over the Stop Online Piracy Act (SOPA).

The language choices here appear to have been workshopped by a committee of hundreds. What the hell does this mean? Does it mean that she would oppose the fight over SOPA? Or SOPA itself? Because it's pretty clear that she's implying that she would oppose things like SOPA (which, again, had nothing to do with net neutrality). But she also was a SOPA supporter -- at least until it was politically inconvenient. During the height of the SOPA battle, she sent a letter insisting (contrary to the statement in her new platform) that there was "no contradiction" between supporting the free flow of information and enforcing strict copyright laws:

"There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the internet."

So if she believes that, then SOPA wouldn't have restricted the free flow of data. Of course, once the public tide turned against SOPA -- guess what -- so did Hillary, suddenly making it out to have been an important fight for internet freedom, even though she denied that very point just months earlier:

“The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.”

In other words, like a standard politician, we've got vague promises and flip flops -- along with ignoring previous positions when convenient.

As for patents, for the short version, we've got:

Improve the Patent System to Reward Innovators: Hillary will enact targeted reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office, so that we continue to reward innovators.

Again, vague language that can be taken in many different ways (again, obviously on purpose). The good: highlighting the problem of "excessive patent litigation" is definitely a good sign and is basically an acknowledgement of the problems with the patent system -- mainly patent trolling, but that should include excessive litigation by operating companies as well. But again, that's immediately weighed down by what follows, which could mean basically anything. Strengthening the capacity of the PTO... for what? To reject bad patents? That would be good. To grant more patents? That might be bad. And the whole "so that we continue to reward innovators." What does that mean? If you believe that the patent system itself rewards innovators, then that would mean encouraging more patenting. If you believe that the patent system is stifling innovators, then that should mean ending bad patents that are used to hinder innovation. Which is it? Who the hell knows. And I doubt Clinton herself has any real understanding of the issues here either.

The longer version makes it clear she's supporting some of the current anti-patent troll legislation, which is a good thing:

The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.

Those are good things. But then we've got the expanded explanation of strengthening the PTO and again it's a giant "huh?"

Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.

Of course, this is somewhat contradictory with the stuff raised earlier. Fee retention is one of those ideas that perhaps makes sense, but skews the incentives in dangerous ways, possibly pushing the PTO to encourage more patent applications and patents in order to get more fees. Similarly, "faster review" historically has meant lots more crappy patents getting approved -- leading to more patent trolling over bogus patents.

So, basically, she's promising points to the two key sides of the patent debate, without noting how the two plans are in conflict with each other if she's looking to solve real problems.

Again, none of this is a surprise. This kind of wishy washy political language where none of it really means anything is par for the course for just about any major politician, and Clinton has historically made this kind of noncommittal hand-wavy bullshit an artform all her own. She's not looking to solve real problems. She's looking to convince you that she's actually heard of the pet problem you're focused on and she has a vague plan to "solve it." Never mind the details or the fact that the plan conflicts with other parts of her plan.

from the making-friends-and-influencing-people dept

Hillary Clinton's tech policy plan has been released, and it includes some new, potentially hollow broadband promises, a pledge to continue defending the FCC's net neutrality rules from telecom industry attack, some feel good commentary on the sharing and innovation economies, and continued support for the candidate's absurd war on encryption.

With the FCC's recent net neutrality court victory, the broadband industry's best path forward is to elect a President who'll stock the commission with revolving door regulators who'll simply fail to enforce the rules. But Trump's proven so divisive to some Conservatives, that even AT&T's top lobbyist Jim Cicconi this week came out in gushing support of Clinton:

"Mr. Cicconi, who worked in the White House for Presidents Ronald Reagan and George H.W. Bush, said he has backed every GOP presidential candidate since 1976. “But this year I think it’s vital to put our country’s well being ahead of party,” he said in a statement provided by the campaign. “Hillary Clinton is experienced, qualified, and will make a fine president. The alternative, I fear, would set our nation on a very dark path."

Given AT&T's threat to take the neutrality fight to the Supreme Court, Cicconi's support is curious, but may say more about Trump's unpredictability than it does about Clinton. Regardless, the 14-page "technology and innovation agenda" includes upsetting her new BFF by continuing to fight for net neutrality:

"Hillary believes that the government has an obligation to protect the open internet. The open internet is not only essential for consumer choice and civic empowerment – it is a cornerstone of start-up innovation and creative disruption in technology markets. Hillary strongly supports the FCC decision under the Obama Administration to adopt strong network neutrality rules that deemed internet service providers to be common carriers under Title II of the Communications Act. These rules now ban broadband discrimination, prohibit pay-for-play favoritism, and establish oversight of “interconnection” relationships between providers. Hillary would defend these rules in court and continue to enforce them."

The plan also makes some arguably vague promises on broadband, promising to deliver ubiquitous broadband to all Americans by 2020:

"Hillary will finish the job of connecting America’s households to the internet, committing that by 2020, 100 percent of households in America will have the option of affordable broadband that delivers speeds sufficient to meet families’ needs. She will deliver on this goal with continue investments in the Connect America Fund, Rural Utilities Service program, and Broadband Technology Opportunities Program (BTOP), and by directing federal agencies to consider the full range of technologies as potential recipients—i.e., fiber, fixed wireless, and satellite—while focusing on areas that lack any fixed broadband networks currently."

A favorite pastime of politicians is to make broadband promises they know will be completed even if government doesn't lift a finger, then gobble up the easy political brownie points (with ample help from an unskeptical tech press) after the fact. Obama, for example, in 2011 promised wireless broadband coverage to 98% of all Americans, ignoring the fact that industry data at the time suggested we'd already met that mark (albeit poorly) with 2G and 3G wireless. Former FCC boss Julius Genachowski similarly received ample praise for issuing a "gigabit city challenge", knowing full well gigabit service was arriving without much help from him or other politicians at the time (mostly via frustrated towns and cities forced into the broadband business on their own).

And while the FCC will help us get to 100% broadband coverage by opening up spectrum for 5G, moving from the supposed 98% broadband coverage mark to 100% really won't require much government help. 5G is arriving by 2020 or so regardless of what Clinton does, as it's a cornerstone of AT&T and Verizon's plan to hang up on unwanted DSL customers they refuse to upgrade. That doesn't somehow mean the broadband that's "100% available" to you is going to actually be good or cheap, since that would involve the government acknowledging that lack of competition means Americans pay more for broadband than most developed nations. Fixing this will take significantly more than empty promises, and for Clinton, it will certainly involve pissing off new allies like Jim Cicconi.

The lion's share of Clinton's tech agenda consists of ambiguous promises that, as with all campaign promises, may or may not have any actual basis in fact.

Clinton's plan calls for improving government adoption of technology and efficiency, improving our patent system (which the Clinton camp declares "has been an envy of the world"), and other feel good efforts such as "facilitating citizen engagement in government innovation" and using technology to "improve outcomes and drive government accountability" (doesn't that sound lovely?). But Clinton also makes it clear she intends to continue waging war on encryption -- her plan for a "Manhattan Project" to "solve" (read: weaken) encryption still very much on the table:

"Hillary rejects the false choice between privacy interests and keeping Americans safe. She was a proponent of the USA Freedom Act, and she supports Senator Mark Warner and Representative Mike McCaul’s idea for a national commission on digital security and encryption. This commission will work with the technology and public safety communities to address the needs of law enforcement, protect the privacy and security of all Americans that use technology, assess how innovation might point to new policy approaches, and advance our larger national security and global competitiveness interests."

Yes, it's abundantly clear that Clinton and friends continue to struggle with the idea that encryption is simply a tool, and like any tool it can be used for a myriad of purposes. That doesn't mean you unilaterally declare war on said tool -- or work tirelessly to make that tool less useful or more dangerous via backdoors -- a conversation we'll apparently be having over and over and over again should Clinton's presidency ascend beyond the rhetorical, larval stage.

from the open-v.-closed dept

Mathew Ingram recently wrote a fantastic post about Twitter's big mistake a few years back, basically killing off its openness for developers. He builds his argument off of an interesting post from Ben Thompson, arguing that Twitter has lost its strategic focus. Both articles are great, and I recommend them both. In the early days, Twitter was almost completely open. Many of its most useful features and services came from others building on top of it. The very idea of the "@" symbol was the invention of a user. Same with the retweet. Now both are core to Twitter's identity. And, of course, third-party services were what made Twitter usable in the first place. The service didn't really ever take off for me until I used Tweetdeck -- which was a third party service until Twitter bought it. Thankfully, I can still use Tweetdeck (though not on mobile) because Twitter's actions killed off most competitors (and, because of this, Tweetdeck still lags in fixing some basic things -- like an autoscroll problem I've complained about for years). As Ingram notes, Twitter made a big strategic shift, as it started to fear its own openness and worry that it may have resulted in the dreaded "someone else profiting" off of Twitter's foundation:

Namely, a crucial turning point in Twitter’s evolution that arguably helped put it where it is today, both in a positive sense (it is a publicly-traded $25-billion company) and a negative one (its growth potential is in question and its strategy doesn’t seem to be working). And that turning point happened about five years ago, when Twitter decided to turn its back on the third-party ecosystem that helped make it successful in the first place.

This process began gradually, with the acquisition of Tweetie — which became Twitter’s official iOS client — and restrictions on what third parties could do with tweets, including selling advertising related to them. But it escalated quickly, and arguably became an all-out war with Twitter’s moves against Bill Gross, the Idealab founder and inventor of search-related advertising, who was busy acquiring Twitter clients and trying to build an ad model around the public Twitter stream. The idea that someone could monetize Twitter before Twitter itself got around to doing so was what one investor called a “holy shit moment” for the company.

We see this sort of thing in all sorts of areas -- especially around "intellectual property." People have a very emotional "holy shit moment" pretty frequently when they see "someone else" making money by leveraging something that they feel some sort of ownership attachment to, whether or not there's any legitimate basis for that attachment. So many of the intellectual property fights we see stem from that general feeling of "Hey, that's ripping me off!" even if the actions of those third parties may not have any real impact on the originating content, service or idea.

In the internet era, however, this is almost always the wrong decision. The internet thrives based on the flow of information. You want information to flow more broadly, rather than to hoard it. Historical economics is based on worlds of scarcity, and in worlds of scarcity it makes sense to hoard resources, as they are valuable by themselves. Yet, in worlds of abundance you want the opposite. You want abundant or infinite resources to flow freely because they do something special: they increase the value of everything else around them. You want openness, not closed systems. You want sharing, not hoarding. You want copying, not restrictions. Because all of those things increase the overall pie massively, even if some of that pie (or even large portions) are captured by others.

As Ingram notes, at least some at Twitter recognized this at the time. An early influential employee at Twitter, its chief engineer Alex Payne, wrote about how he tried to persuade the company to go in that direction:

Some time ago, I circulated a document internally with a straightforward thesis: Twitter needs to decentralize or it will die. Maybe not tomorrow, maybe not even in a decade, but it was (and, I think, remains) my belief that all communications media will inevitably be decentralized, and that all businesses who build walled gardens will eventually see them torn down. Predating Twitter, there were the wars against the centralized IM providers that ultimately yielded Jabber, the breakup of Ma Bell, etc. etc. This isn’t to say that one can’t make quite a staggeringly lot of money with a walled garden or centralized communications utility, and the investment community’s salivation over the prospect of IPOs from LinkedIn, Facebook, and Twitter itself suggests that those companies will probably do quite well with a closed-but-for-our-API approach.

The call for a decentralized Twitter speaks to deeper motives than profit: good engineering and social justice. Done right, a decentralized one-to-many communications mechanism could boast a resilience and efficiency that the current centralized Twitter does not. Decentralization isn’t just a better architecture, it’s an architecture that resists censorship and the corrupting influences of capital and marketing. At the very least, decentralization would make tweeting as fundamental and irrevocable a part of the Internet as email. Now that would be a triumph of humanity.

But he lost that argument to those who wanted to keep the pie smaller, but to capture more of it for themselves. That may have helped the company go public, but it has put the company in a serious bind today. One in which Wall Street is profoundly disappointed that what Twitter is capturing for itself "isn't enough" and the innovations that the company needs to keep growing and innovating are much harder to come by. Sure, it does things like Vine and Periscope -- both of which it bought out in infancy -- but to do so it's had to hamstring other third-party developers like Meerkat.

Ingram also highlights another Ben Thompson post on what Twitter might have been had it gone down this more open path (he wrote this after the whole Meerkat thing):

I would argue that what makes Twitter the company valuable is not Twitter the app or 140 characters or @names or anything else having to do with the product: rather, it’s the interest graph that is nearly priceless. More specifically, it is Twitter identities and the understanding that can be gleaned from how those identities are used and how they interact that matters.

If one starts with that sort of understanding — that Twitter the company is about the graph, not the app — one would make very different decisions. For one, the clear priority would not be increasing ad inventory on the Twitter timeline (which in this understanding is but one manifestation of an interest graph) but rather ensuring as many people as possible have and use a Twitter identity. And what would be the best way to do that? Through 3rd-parties, of course! And by no means should those 3rd-parties be limited to recreating the Twitter timeline: they should build all kinds of apps that have a need to connect people with common interests: publishers would be an obvious candidate, and maybe even an app that streams live video. Heck, why not a social network that requires a minimum of 140 characters, or a killer messaging app? Try it all, anything to get more people using the Twitter identity and the interest graph.

There's a more fundamental premise at work here. In the information era, spreading more information increases the pie massively and opens up many more opportunities. The challenge is that many others can also take advantage of many of those opportunities, but as the core player in the space, a company like Twitter has a clear and natural advantage, even if it did what Payne had wanted to do many years ago and give up the underlying control altogether.

This is, unfortunately, a profoundly difficult concept for many to grasp -- especially when they're in the midst of it. Hell, even as someone who regularly talks about this very idea, I still get the initial emotional pang of being upset when I see someone else get success with an idea that I had first (whether or not they got it from me). It's only natural to have that visceral reaction. The real question is what do you do about it. Do you fret? Do you try to control? Or do you realize that in broadening these ideas and sharing them more widely, it creates greater opportunities across the board?

It's impossible to know what would have happened had Twitter taken a different path. But it seems clear that remaining a more open platform (or even moving to a fully distributed one), would have resulted in a tool that was much more useful today, with a much larger audience and much greater innovation. It's too bad we didn't get to live in that world.

from the if-we're-going-to-have-any-morality-around-here,-we've-got-to-ditch-a-fe dept

We recently discussed the GOP's decision to sabotage its new "internet freedom" platform by including some unfortunate anti-porn provisions. Romney declared that, if elected president, every new computer would have an anti-porn filter installed. At the very least, this filtering would be redundant. As Mike pointed out, porn filters already exist and are easily available. If this is being done "for the children," perhaps the application of a porn filter should be left to the parents, rather than made mandatory via legislation.

That handles the user end of the experience. I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK. Whether or not an opt-in Known Perverts option will be available is still open to speculation. Most likely, once the rhetoric clears, it will simply be a matter of computer manufacturers offering filtering software right out of the box. This will fulfill the requirement without needing much more than some cursory compliance checks, and everyone involved will feel proud to have "done something" to keep porn out of kids' eyeballs. This will also be a boon for developers of filtering software, who will be jockeying for lucrative OEM contracts.

Romney hasn't really specified what he means by "computer," meaning that the spread of pre-installed filterware could envelop any device that connects with the internet, including tablets and smartphones. There is also no information on how "mandatory" these filters will be or what issues computer/device manufacturers will face should they fail to comply.

It's a vague concept that hardly anyone will argue against for fear of appearing to be siding with pornographers, or worse, child pornographers (thanks to always-handy conflation). Perhaps more unsettling than the feel-good, do-nothing "filtering" promise is another sentence lurking in the platform: "Current laws on all forms of pornography and obscenity need to be vigorously enforced." Eugene Volokh tackles the troubling implications of this phrase, putting together a set of tactics the government could implement in an effort to enforce standing obscenity laws.

First off, Volokh tries to determine the endgame? Is the intent to shut down as many US pornographers as possible? If so, supply from other sources will fill the demand:

[E]ven if every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack? It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world's #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

This is an interesting conjecture. Removing the producers from the equation opens up the possibility that foreign producers would simply do the math and up their profits by reselling product they didn't create. Having the US government eliminate their competition is an added bonus. It seems unlikely that the government would act on the behalf of porn companies it's legislated or prosecuted out of existence. But would it tolerate abuse of American IP, no matter how abhorrent the subject? Probably. The porn industry isn't known for its lobbying efforts.

Moving on, Volokh speculates on three possible outcomes of enforcing existing laws on pornography and obscenity.

The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before.

This tactic sounds like it would work as well as current IP enforcement measures. As it stands now, ICE is better known for its RIAA/MPAA lapdog status than for producing credible results. Sites get taken down, sat on and returned to their owners with no charges brought or apologies offered. Drawing a bead on targets like porn producers makes for some rah-rah press but will have little effect on the amount of porn available.

As ineffective as these actions would be, the greater issue is that increased enforcement will do absolutely nothing to change people's perception of porn:

Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

This falls right in line with the perception of file sharing as a "moral" issue. It's all well and good to claim the high road in the fight against infringement, but if the general public doesn't share your beliefs then the battle is not winnable. Legislation and prosecution aren't going to change anyone's mindset. It just makes the punishment seem ridiculous or unduly harsh.

There are more echoes of the ongoing anti-piracy efforts. Volokh's next scenario involves going after foreign producers:

The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

This goes far beyond simply requiring pre-installed filtering software. Instituting any sort of a blacklist combines the futility of whack-a-mole with the "we don't have time to follow procedures/respect rights" urgency of "doing something" to make the internet a "safer" place. As these actions prove futile, enforcement will move to cutting off the money supply, targeting credit card transactions, pressuring foreign governments to play by the US''s rules, etc.

The third option, and probably the least palatable to politicians? Going after end users:

Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you'd also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g.,United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case).

Politicians may state that they think porn should be outlawed or controlled, and some are even willing to trample on some rights to put that in motion. But it's hard for most to jump from taking down the supply side to attacking the demand. If your aim is to make the internet "safer," it's fairly easy to see that removing users has no effect on "safety." But while this logic leap is hard, it is by no means impossible. The War on Drugs has locked up thousands of users by making possession a crime. "Possession with the intent to distribute" is simply a matter of going above an arbitrary quantity. Possession laws assume the only reason a person would be carrying [x] amount of drugs is because they're selling to others. Would a person with more than [x] megabytes of porn on their hard drive be considered a distributor, thus opening up the possibility of additional charges? I don't see why not, given the attitude surrounding the issues.

There's plenty of food for thought in Volokh's post, especially considering the faint echoes of SOPA/PIPA present in the discussion of enforcing morality. Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists. Ultimately, the question isn't about whether or not porn is "bad" for citizens, but rather, how can these laws possibly be enforced without descending quickly into "draconian measures"?

How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what any mainstream political figures are talking about right now?

The answer is: it can't. But these concerns aren't being considered, at least not during an election run. Post-election, if anyone gets around to fighting this unwinnable battle, the concerns likely won't be considered at that point, either. It's usually not until the public gets noisy enough to jeopardize politicians' careers that any sort of consideration is given to the rights of the people affected. Even more disturbing is the fact that pursuing this end effects both sides of the creative effort: the producers and the consumers. Considering the resemblance these actions have to past overreaching legislative efforts crafted to "protect" certain industries, it's rather disconcerting to see the possibility of these same actions being used to destroy a creative industry simply because certain people don't care for the product.

from the build-in-cwf+rtb dept

Nearly two years ago, Spotify first hinted at its desire to set itself up as a platform that others could build things on top of. And it's finally become a reality. This could actually be quite cool. Just a couple months ago, we were pointing out that just "putting radio on the internet" isn't that cool, but that we need killer apps for music. Spotify as a platform will hopefully make it easier for those killer apps to happen. The current crop of apps that they launched with are pretty ordinary, but I'm excited to think what comes next. Things I'd love to see: Turntable.fm (still the most addictive and coolest "social music" service out there) integrated directly into Spotify) as well as integration with things like TopSpin or Bandcamp. Right now there are options to do ticketsales, but what if you could build in ways to let people buy merch... or, better yet, connect with the artist directly via Spotify? And those are the obvious ones. The real killer app is probably going to take us all entirely by surprise. This is, by the way, yet another reason that short-sighted artists and labels are going to regret dropping out of Spotify. You have to be where the killer apps are or you're going to get left behind.

from the the-challenge-is-(still)-on dept

Nearly seven years ago, I wrote about the idea that there was a "battle to own the internet," and that if Google really wanted to succeed, it had to move away from just being a product company to being a true platform company that had a much more open setup, which did much more to encourage developers to build on top of it. Over the years, occasionally I've repeated that point. And while Google has done a few things at the margin, it still has always seemed to resist becoming a true platform. There are, certainly, some folks inside Google who get this, and I seem to hear from a bunch of them any time I bring this up. But the company has a history of having trouble really opening up to outside developers.

Some have been reading it as an insider's "attack" on Google, but I don't see that at all. It seems like a call to action from someone who thinks the company is missing the boat on being a platform. Yegge spends a lot of time talking (very openly) about his prior experience working at Amazon, and about how Jeff Bezos got the "we need to be a platform" religion big time nearly a decade ago, and effectively forced the entire company to focus on that as job number one. While Yegge criticizes many problems with Amazon, he does recognize that such a vision has put Amazon in a good position (along with others who have clearly embraced being "the" platform: Facebook, Apple and, almost by accident, Microsoft).

The key part of the post, which is what many people are focusing on, is where Yegge criticizes Google+, and how it wasn't designed as a platform, whereas its main direct competitor, Facebook, has clearly embraced being a platform in a very meaningful way.

Google+ is a prime example of our complete failure to understand platforms from the very highest levels of executive leadership (hi Larry, Sergey, Eric, Vic, howdy howdy) down to the very lowest leaf workers (hey yo). We all don't get it. The Golden Rule of platforms is that you Eat Your Own Dogfood. The Google+ platform is a pathetic afterthought. We had no API at all at launch, and last I checked, we had one measly API call. One of the team members marched in and told me about it when they launched, and I asked: "So is it the Stalker API?" She got all glum and said "Yeah." I mean, I was joking, but no... the only API call we offer is to get someone's stream. So I guess the joke was on me.

Microsoft has known about the Dogfood rule for at least twenty years. It's been part of their culture for a whole generation now. You don't eat People Food and give your developers Dog Food. Doing that is simply robbing your long-term platform value for short-term successes. Platforms are all about long-term thinking.

Google+ is a knee-jerk reaction, a study in short-term thinking, predicated on the incorrect notion that Facebook is successful because they built a great product. But that's not why they are successful. Facebook is successful because they built an entire constellation of products by allowing other people to do the work. So Facebook is different for everyone. Some people spend all their time on Mafia Wars. Some spend all their time on Farmville. There are hundreds or maybe thousands of different high-quality time sinks available, so there's something there for everyone.

Our Google+ team took a look at the aftermarket and said: "Gosh, it looks like we need some games. Let's go contract someone to, um, write some games for us." Do you begin to see how incredibly wrong that thinking is now? The problem is that we are trying to predict what people want and deliver it for them.

This part rings incredibly true. I know that when Google+ launched, I liked it as a program, but asked people about APIs, because it needed to better integrate into my workflow -- and was told that that would be coming "sometime later." And while I still mess around with Goolge+, it's largely become an afterthought to me, because it just lives off in its own separate world, rather than integrating well. There are still features I like, but until developers have a chance to dive in and make it useful... it just doesn't feel like a necessity.

But there's a bigger lesson in this, beyond Google's continued platform-itis. And it goes back to the issue of cargo cult copying -- a topic I've discussed a number of times. People seem to think it's easy for companies (especially big companies) to "copy" products of their competitors. In fact, with Google, many people think it's so easy that there are antitrust investigations going on. But Google+ and the points that Yegge raise remind us, yet again, that while copying the basic "features" of a product may be possible, really recreating what makes it tick and what makes it successful is difficult.

It's easy to copy the superficial. It's difficult to copy the soul.

With Google+, the company built a really nice copy (with some clear improvements) of Facebook, the product -- which is the superficial, public-facing part. But it completely missed the boat on Facebook, the platform -- which is the real soul of what makes Facebook such a powerhouse. Google certainly can get there. And, in the back of my mind, I'd always assumed that was exactly the path they were on. But remembering that post from 2004, and the lack of any sustained, involved effort within and across Google to be a platform, combined with this post from Yegge, again makes me wonder if Google just doesn't recognize the importance of being a platform.

I've argued in the past that one big achilles heel for Google is its awful reputation when it comes to customer service, but it's lack of deeply ingrained platform-focused thinking may represent a much bigger threat.

from the this-could-be-interesting dept

Live Nation gets a bit of a bad reputation for some of the way it handles large stadium shows, but of the "big" music industry players, it's actually one of the more interesting and better positioned companies out there, because it really has aligned itself to benefit from the sale of scarcities, rather than the sale of music itself. It does have some legacy issues, such as huge commitments to some large acts and a distracting merger fight with Ticketmaster, but the company is still worth watching. It's been trying to do more and more with its website, to make it something of a destination/e-commerce play, and its latest move is to make it more of a platform. Both artists and fans will be able to upload concert footage, as well as various community features (wikis, reviews, Twitter streams, fan Q&As and more). It increasingly seems like Live Nation is trying to enable a platform where fans and artists can connect, and on which fans can buy (mainly concert tickets, but other things as well). It's a smart move, but I wonder whether or not Live Nation ends up competing with a band's own web presence. What could be cool is if Live Nation also makes it so an artist can integrate many of these features into their own site as well. In the meantime, though, we're once again seeing why now is a great time to be a musician. There are so many different services that help enable artists to both connect with fans and set up business models.

from the head-scratcher dept

In the US, thanks to safe harbor rules in the DMCA and the CDA, courts will often toss out misdirected lawsuits that go after a service provider for the actions of a user. To be honest, I've always questioned why we need such safe harbors in the first place, since it should just be basic common sense that a service provider shouldn't be liable for the actions of a user. But, of course, common sense just isn't that common. This can be seen, first, in all the lawsuits that require incantations of the safe harbors to get them tossed out, but even worse, in foreign countries that have no such safe harbor laws. Take for example, a case in India, where Google India is being blamed for content written by bloggers on Blogger. First, Blogger is run by Google, not Google India, so the lawsuit is doubly misdirected -- but, more importantly, Google itself cannot be responsible for what someone writes using its tool. That's like suggesting that Bic is responsible for what you write with its pens. The case involves a guy who was upset about what some bloggers wrote about him -- so of course, he had to sue Google. What's amazing is that the judge seems to have initially bought this as reasonable. It barred Google from hosting any blog that "defamed" this guy. Google has responded by trying to explain the basics of the internet to the judge and how it's impossible for Google to figure out if someone is defaming someone else using its software.

from the no-surprise-really dept

It's been quite common for companies to sue Google when a competitor puts up an ad that references their own trademarks. This is misguided in any number of ways: first, as long as the ad itself is not confusing such that the reader (or a moron in a hurry reader) would think that the ad is from the original company rather than the competitor, there's not likely to be a trademark violation. More importantly, even if there is a trademark violation, it should not be Google's liability, since they're simply the service provider. The liability (if there is any) would be on whoever created the ad. Mostly, the courts have gotten this right -- though, sometimes they've gotten confused. Either way, those lawsuits keep getting filed.

And now, it appears, they're spreading. Dave Barnes alerts us to the news that a similar lawsuit has been filed against Craigslist. The lawsuit was originally filed in a Texas state court, but has been transferred to a federal court -- but not before the state court banned Craigslist from posting any more ads with those trademarked words. Considering that Craigslist does not pre-screen posts to its site, it's not at all clear how that's even possible. And, considering that trademarks only cover use in commerce in a specific context, it would be way too onerous to insist that Craigslist could not allow the phrases "Call First," "First Call Properties," or "Call Us First," in any context whatsoever.

Hopefully, the federal court is quick to dismiss Craigslist from the suit. Unfortunately, since trademark claims don't have a section 230 or DMCA safe harbor, it may be a little more involved than some other cases. But common sense, once again, dictates that Craigslist should not be the liable party here and should not be responsible for policing the text of posts. To make the claim even more ridiculous, since Craigslist doesn't charge for the ads in question, it's difficult to see how Craigslist could be found to have been using these words "in commerce." The lawsuit also alleges libel against Craigslist -- which should get thrown out quite quickly under section 230. It's too bad that the trademark claim might be a bit more involved.

from the bad-news dept

Having just pointed out how multiple train operators are using intellectual property laws to shut down helpful third party apps, we're seeing a number of stories about other companies doing something similar. First up is Last.fm, which has apparently started blocked a bunch of third party apps that had been using undocumented calls to stream content from Last.fm. Last.fm (now owned by CBS) was in a bit of a quandary, because its licenses with the major record labels (there they go again, blocking innovation) forbid streaming except in specific circumstances -- so these third party apps "broke" the agreement. But... that's not quite true, because the agreements are between Last.fm and the labels, not the third parties. Last.fm has now specific requirement to block others from creating apps. So, yes, Last.fm has every right to do this, and I'm sure the labels were demanding it do this, but it still doesn't make it a very smart move. Those third party apps were making Last.fm more valuable. Blocking them hurts the overall value and pushes people to go in search of other services that are more consumer friendly.

This move also comes right after Last.fm's recent decision to charge for streaming outside of the US, Germany or the UK. This also has folks up in arms -- and is driving away users in droves to other solutions. Last.fm has plenty of competitors out there, and working hard to make its own service less usable and less reasonable isn't going to help keep users around.

Meanwhile, a bunch of folks have sent in the story of how DVD rental kiosk operator Redbox has pressured a third party to takedown its Redbox iPhone app. The app was apparently pretty cool, making use of the phone's GPS to tell you where the nearest kiosk is, and letting you reserve the movie you want. There is some speculation that Redbox is upset that the app also pulls a list of promotional codes, allowing some people to rent movies for free -- but that's a misguided concern. If that's the real issue, then they should just change how their promotional codes work because (of course) the codes are still available for anyone to search and use online. Shutting down the iPhone app doesn't fix that at all.

Still, it seems that both companies should know better. Having third parties build apps that make your services more useful is a sign of success, and should be encouraged, not threatened and shut down. We live in an age where too many people focus on using intellectual property as a club to block any use -- even when those uses are helpful in making your core product even more valuable.